Bail

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Comment by Michael Berg a Criminal Defense Attorney in San Diego.


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Bail

Bail Bond Process

Essentially, once an individual is arrested, the jail will set an amount of bail depending on the criminal charges.  Every jail in every city has a bail schedule that they follow depending on what the criminal charges are.  Said amounts of bail differ from city to city and state to state.  Posting of this bail amount will suffice as a guarantee in order for a person to be released from custody pending a future court appearance.  A person may be released from jail in the following ways:

 

  • By posting the entire amount of the bond with the jail.  For example, if an individual is arrested for auto theft and the bail amount is $10,000.00, a friend or family member may post the entire $10,000.00 with the jail.  This bond will ensure that the individual will return to court for future court dates.  Assuming that all court appearances are made and no conditions of release are violated (e.g. drug testing, remaining law-abiding, etc.), the entire amount of the bond is returned to the person posting the bond.  In some cases, interest will be provided.
  • Posting real property as collateral.  In this regards, some courts will require that the individual posting the bond has equity in the property worth at least two times the amount of the bond.  A Deed of Trust is signed deeding the property to the court.  At the end of the case, assuming all appearances have been made and no conditions of release have been violated, the property is then deeded back to the grantor.  For example, if the bail is set at $10,000.00, the property an individual posts must have equity of at least $20,000.00. (The property, if sold, would have a value of at least two times the amount of the bond after the balance of the mortgage is paid off).
  • By using a corporate Bailbondsman.  In this case, an individual would go to a Bail Bond Company and give the bondsman a "fee" for posting the balance of the bond.  This fee is non-refundable and is the bondsmen's fee for posting the balance of the bond.  Fees can range from six percent (6%) to ten percent (10%) depending on the state and the bondsman.  In the above case, if the bond is $10,000.00 and the bondsman will post it for 10%, the individual would pay the bondsman $1,000.00 as a fee for posting the remainder of the bond with the jail.  The $1,000.00 would NOT be refunded despite the length of time the case took to resolve or even if no charges were ever actually filed.
  • A person might appear before the judge and the judge would agree to allow a person to be released on his/her own recognizance.  In this manner, there would not be any posting of either bail or collateral.  The judge is essentially allowing the individual to leave the jail and return to court based on their own individual "promise to appear."  Failure to do so can result in additional charges being filed.

    • Collateral

    Collateral is property placed within the bailbondsman's legal control, which the bondsman may sell in the event the defendant does not appear for court. The bail agent would sell the property to cover the amount the bondsman paid to post the bail.  Essentially, collateral is a way for the bondsman to ensure the defendant will appear in court. 

    Almost anything legal may be posted as collateral, such as real estate, automobiles, credit cards, stocks, bonds and jewelry. 

    Federal Bonds

    Most Federal District Courts do not allow the use of corporate sureties or bail bondsmen.  Although used in some districts, it is increasingly rare.   Typically, federal courts do not recognize Own Recognizance bonds and will require some form of security.  This can range from a signature bond indicating that an amount of money will be owed to the court should a defendant fail to appear or violate the conditions of release, or a property bond, wherein property is deeded to the court to secure a person's appearance at future court proceedings.  Some district judges will allow for collateral in lieu of property, such as stocks or bonds or sometimes even jewelry.

    A Nebbia Hearing may be held wherein the individual posting the bond will have to declare under penalty of perjury before a judge that the source of the funds being posted for the bond are not illegal gains, such as drug proceeds.

    Overview

    A Bail Bond is essentially collateral that a person or company posts on an individual's behalf to guarantee that an individual will show up for his/her court appearance.  Posting collateral in the form of money or property in exchange for an individual's temporary release from jail pending a court appearance dates back to 13th century England where there was a greater need to create a balance among the rich, middle, and poor classes on temporary releasing someone from jail when individuals were accused of a crime.

    In early England, only those who had enough money and property to post as security were fortunate enough to secure temporary release from jail pending a return to court for an appearance.  Savvy individuals came to the conclusion that with enough capital, they could offer this security to the court in a defendant’s name after receiving a percentage of the amount as insurance.  Thus, "Bondsmen" were created who would then accept a percentage of the bail needed and post the rest for someone who has been charged with a crime and is hoping to be released from custody pending appearances at future court dates.  The "fees" involved when using a commercial bond service is how the Bondsmen earn their profit. 

    Q: Does Every State Allow Bail Bond Companies?

    A: The following states either do not allow private bail companies to deal in bail bonds or commercial bail bonds are extremely rare. Please contact your local court or the jail in which the person is held for further information regarding an inmate's release: Illinois Kentucky Maine Massachusetts Nebraska Oregon Wisconsin Washington, DC

    Q: Do I Get My Bail Money Back After The Case Is Over?

    A: The short answer is "no." Unless you posted the entire amount of the bond with the court, the money you paid to the bail bondsman is the bondsman's fee. This fee is what allowed the individual to get out of jail pending court appearances, and is fully earned once the defendant is out of custody. Even if there are no charges eventually filed or if the defendant is rearrested a week later, you would not receive any refund nor the return of any monies posted.

    Q: Do I Have Any Recourse If I Believe the Defendant Is Not Going To Show Up For Court After I Have Posted The Bond?

    A: Although your options may be somewhat limited, you can always "surrender" the individual back to the bailbondsman. The bondsman would then take the individual back into custody pending the posting of a new and different bail bond.

    Q: Can my bondsman revoke my bail?

    A: When the bondman bonded you out, he had you sign a bond contract. If you are abiding by the conditions of the contract and are paying the payments as the contract calls for, he cannot change the amount you have to pay without your agreement. Bondsmen are regulated by the State, usually through ...


    Q: Can you go to jail for not paying your bond off?

    A: No. The bond payment issue is a matter of contract law. Of course, if you stiff the bonding company, whatever security you gave them could be levied on [depending on your written agreement], and they could sue you on the contract, and word would get around through their system and you would ...


    Q: If I'm out on bail and the DA adds a charge to my existing charges will I be arrested at my next court appearance in CA?

    A: Not likely. They would have to show a substantial change in circumstances to do so. You should hire an attorney if you haven't already done so.



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